Citation Nr: 0925940
Decision Date: 07/10/09 Archive Date: 07/21/09
DOCKET NO. 05-40 378 ) DATE
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)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUES
1. Entitlement to service connection for numbness of the
right fifth toe.
2. Entitlement to service connection for degenerative disc
disease of the lumbar spine.
3. Entitlement to service connection for residuals of a left
leg injury.
REPRESENTATION
Veteran represented by: Mississippi Veterans Affairs
Commission
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. Smith, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1967 to July
1970, with subsequent service in the Army National Guard from
July 1970 to July 1973.
The Veteran's claim comes before the Board of Veterans'
Appeals (Board) on appeal from an October 2004 rating
decision of the Department of Veterans Affairs' (VA) Regional
Office (RO) in Jackson, Mississippi, that denied the benefits
sought on appeal.
The Board notes that in a July 2009 letter from the Veteran,
he raises the issues of a right foot disability, a neck
disability, and a right knee disability. These issues are
referred to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
Inasmuch as the Board regrets the additional delay of this
matter, it finds the claims on appeal cannot be fairly
adjudicated without further development.
The Board finds a VA examination is necessary to decide these
claims.
In the case of a disability compensation claim, VA's duty to
assist includes providing a medical examination or obtaining
a medical opinion when necessary to make a decision on the
claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. §
3.159(c)(4) (2005). Such an examination or opinion is
necessary to make a decision on a claim if all of the lay and
medical evidence of record (1) contains competent evidence
that the claimant has a current disability, or persistent or
recurrent symptoms of disability; and (2) indicates that the
disability or symptoms may be associated with the claimant's
active military, naval, or air service; but (3) does not
contain sufficient medical evidence for VA to make a decision
on the claim. Id.
Here, the file contains current diagnoses of each condition
on appeal. A November 2008 MRI indicates the Veteran's left
leg has a remote fracture. He has a large anterior
osteochondral fragment displaced from the tibial plateau, and
the remote fracture has produced a complete disruption of the
distal ACL and chronic thickening of the anterior central
root of the lateral meniscus. He also has a horizontal tear
of the posterior horn of the medial meniscus. A VA
examination of March 2006 further documents diagnoses of
degenerative disc disease of the lumbar spine, and objective
findings of decreased sensation in the right fifth toe.
As for the in-service incurrence of these conditions, the
Board notes there are essentially no service treatment
records associated with the file. Given the absence of such
records, the Board has a heightened duty to explain its
findings and conclusions and to consider carefully the
benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet.
App. 365, 367 (1991)(the BVA has a heightened duty in a case
where the service treatment records are presumed destroyed).
The Veteran in this case served three years on active duty,
and three years on reserve duty. He was a paratrooper and
received the Paratrooper Badge for his service. His
contentions regarding his in-service injuries have been
consistent throughout the entire appeal, including in his
November 2007 Board hearing testimony, his March 2006 RO
hearing testimony, a number of other statements, including
those of June 2005, August 2004, and June 2004. The Veteran
contends that as a paratrooper, he participated in over 60
jumps. His statements concerning the unit to which he was
assigned have also been consistent and are confirmed by
personnel records. He alleges one primary in-service
accident that is related to his current knee, back, and toe
problems. He contends that in 1968 or 1969 he participated
in a "bad jump" in stormy weather, during which he hit
trees and had to be rescued from the trees. He states he was
treated for his injuries and was placed on some type of
profile or sick leave for 30 days. He has also contended
that in 1969 his unit was deployed to Washington, D.C., to
help manage riots, and that he sustained further injuries
there. Further, in June 2006 the Veteran's mother submitted
a lay statement corroborating the in-service events with her
personal knowledge of the injuries.
The only nexus opinion of record is that of the March 2006 VA
examiner, who rendered a non-opinion, stating he could not
resolve the issue. The Board finds that a second VA
examination is necessary. The Veteran has alleged the
examination was hurried and cursory as the examiner was late
to play golf. The Board notes the examiner noted no
abnormalities with the Veteran's knee or leg, and determined
he had a "[n]ormal examination, legs." As noted above, an
MRI has revealed entirely different findings and the current
medical evidence indicates the need for a total knee
replacement. For all of these reasons, the Veteran's
conditions should be reassessed.
Accordingly, the case is REMANDED for the following action:
Afford the Veteran a VA examination to
ascertain the nature and etiology of the
following conditions:
a. Degenerative disc disease of the
lumbar spine
b. Numbness of the right fifth toe
c. Residuals of left leg injury
Any and all indicated evaluations,
studies, and tests deemed necessary by
the examiner should be accomplished. The
examiner is requested to review all
pertinent records associated with the
claims file and offer comments and an
opinion addressing whether it is more
likely than not (i.e., probability
greater than 50 percent), at least as
likely as not (i.e., probability of 50
percent), or less likely than not (i.e.,
probability less than 50 percent), that
the Veteran's currently diagnosed
conditions had their onset during service
or are in any other way causally related
to the Veteran's duties as a paratrooper
on active service.
All opinions should be supported by a
clear rationale, and a discussion of the
facts and medical principles involved
would be of considerable assistance to
the Board. Copies of all pertinent
records in the Veteran's claims file, or
in the alternative, the claims file
itself, must be made available to the
examiner.
The Veteran is hereby notified that it is
his responsibility to report for the
examination scheduled in connection with
this REMAND and to cooperate in the
development of his case. The consequences
of failure to report for a VA examination
without good cause may include denial of
his claim. 38 C.F.R. §§ 3.158, 3.655
(2009).
After all of the above actions have been completed,
readjudicate the Veteran's claims. If the claims remain
denied, issue to the Veteran a supplemental statement of the
case, and afford the appropriate period of time within which
to respond thereto.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).